Beam v. Office of Navajo and Hopi Indian Relocation

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] Ina Bea m, ) No. CV-21-08149-PCT-SPL ) [9] ) 10 Plaintiff, ) ORDER vs. ) ) [11] ) Office of Navajo and Hopi Indian ) [12] Relocation, ) 13 ) ) 14 Defendant. ) 15 Before the Court are Plaintiff Ina Beam’s (“Plaintiff”) Motion for Summary 16 Judgment (Doc. 13) and Defendant Office of Navajo and Hopi Indian Relocation’s 17 (“Defendant”) Cross-Motion for Summary Judgment (Doc. 17). Both Motions have been 18 fully briefed. (Docs. 13, 17, 21 & 23). For the following reasons, Plaintiff’s Motion will be 19 granted, Defendant’s Cross-Motion will be denied, and the matter will be remanded for 20 further proceedings.1 21 I. BACKGROUND 22 A. The Settlement Act 23 The Navajo–Hopi Settlement Act (the “Settlement Act”) authorized a court-ordered 24 partition of land previously referred to as the Joint Use Area—occupied by both Navajo 25 and Hopi residents—into the Navajo Partitioned Lands and the Hopi Partitioned Lands [26] 27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motions are suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. [28] R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 (“HPL”). See Pub. L. No. 93-531, § 12 , 88 Stat. 1716 (1974); Clinton v. Babbitt, 180 F.3d 2 1081, 1084 (9th Cir. 1999). The Settlement Act created what is now the Office of Navajo 3 and Hopi Indian Relocation (“ONHIR”) to disburse benefits to assist with the relocation of 4 Navajo and Hopi residents who then occupied land allocated to the other tribe. Bedoni v. 5 Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119 , 1121–22 (9th Cir. 1989). 6 B. Factual and Procedural Background 7 Plaintiff is an enrolled member of the Navajo Nation. (Doc. 1 at 2). On January 25, 8 2010, Plaintiff filed an Application for Relocation Benefits, which was denied by ONHIR 9 on December 20, 2012. (Doc. 14 at 4). The ONHIR’s denial letter stated that the agency 10 found that Plaintiff had not proven she was a head of household as of her move-off date, 11 making her ineligible. (Doc. 8 at 39). Specifically, the denial letter stated: 12 In response to question 9 on page 7 of your Application, you stated that you moved off the HPL in “about 1982 or 1983.” 13 As of 1982 and 1983, you were not a Head of Household. Specifically, you were not married (you first married on May 14 31, 1986), you were not a parent (your first child was born on January 28, 1992), and you were not self-supporting 15 (according to your Social Security Earnings statement, you first earned $1,300.00 or more per year in 1984). [16] 17 (Id.). On January 16, 2013, Plaintiff filed a Notice of Appeal, (Id. at 44), and a hearing was 18 held before an Independent Hearing Officer (“IHO”) on March 20, 2015. (Doc. 14 at 4). 19 At the Hearing, the ONHIR stipulated to the fact that Plaintiff became a head of household 20 in 1984, when she earned $1,735. (Doc. 8 at 184). The remaining issue was whether 21 Plaintiff was a legal resident of the HPL at the time she became a head of household in 22 1984. (See Doc. 8 at 192 (IHO acknowledging that the issue at the Hearing was “whether 23 or not the residency was maintained through the time that [Plaintiff] became a head-of24 household”)). After the Hearing, the IHO denied Plaintiff’s appeal and upheld the 25 ONHIR’s denial of her application based on a finding that Plaintiff was no longer a legal 26 resident of the HPL by the time she became a head of household in 1984.2 (Id. at 283–85). [27] 28 2 The Court notes that the IHO affirmed the ONHIR’s denial, but that he did so on 1 On July 1, 2015, ONHIR issued Final Agency Action in Plaintiff’s case. (Id. at 4). On July 2 1, 2021, Plaintiff initiated this action seeking judicial review of the denial of relocation 3 benefits. (Doc. 1). 4 II. LEGAL STANDARDS 5 A. Summary Judgment 6 Generally, summary judgment should be granted when “there is no genuine dispute 7 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 8 Civ. P. 56(a). When conducting judicial review of an administrative agency’s action, “there 9 are no disputed facts that the district court must resolve.” Occidental Eng’g Co. v. Immigr. 10 & Naturalization Serv., 753 F.2d 766 , 769 (9th Cir. 1985). Rather, “the function of the 11 district court is to determine whether or not as a matter of law the evidence in the 12 administrative record permitted the agency to make the decision it did.” Id. Summary 13 judgment is therefore “an appropriate mechanism for deciding the legal question of 14 whether [an] agency could reasonably have found the facts as it did.” Id. at 770. 15 B. APA Standards of Review 16 The Court’s review of the IHO’s decision under the Settlement Act is governed by 17 the Administrative Procedure Act (“APA”). See Hopi Tribe v. Navajo Tribe, 46 F.3d 908 , 18 914 (9th Cir. 1995). Under the APA, the Court must uphold agency action unless it was 19 “arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported 20 by substantial evidence.” Bedoni, 878 F.2d at 1122. 21 An ONHIR decision satisfies the “arbitrary and capricious” standard if “the agency 22 examine[s] the relevant data and articulate[s] a satisfactory explanation for its action, 23 including a rational connection between the facts found and the choice made.” Hopi Tribe, [24] 46 F.3d at 914 (internal quotation marks omitted). This scope of review is narrow, and the 25 Court may not “substitute its judgment for that of the agency.” Id. (internal quotation marks 26 omitted). Still, a decision is arbitrary and capricious “if the agency . . . entirely failed to 27 slightly different grounds. While the ONHIR found that Plaintiff was not a head of household, the IHO found that Plaintiff was not an HPL resident at the time she became a 28 head of household. 1 consider an important aspect of the problem, offered an explanation for its decision that 2 runs counter to the evidence before the agency, or is so implausible that it could not be 3 ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. 4 Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Likewise, 5 if an agency “fails to follow its own precedent or fails to give a sufficient explanation for 6 failing to do so,” its decision is arbitrary and capricious. Andrzejewski v. Fed. Aviation 7 Admin., 563 F.3d 796, 799 (9th Cir. 2009). 8 An agency’s decision satisfies the “substantial evidence” standard if it is supported 9 by “such relevant evidence that a reasonable mind might accept as adequate to support the 10 conclusion.” Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). The standard requires 11 “more than a mere scintilla but less than a preponderance” of evidence. Id. The IHO may 12 “draw inferences logically flowing from the evidence.” Gallant v. Heckler, 753 F.2d 1450 , 13 1453 (9th Cir. 1984). “Where evidence is susceptible of more than one rational 14 interpretation,” the IHO’s decision must be upheld. Id. 15 C. The Settlement Act and Associated Regulations 16 A Navajo applicant is eligible for benefits under the Settlement Act if he was a legal 17 resident of the HPL as of December 22, 1974 and was a head of household at the time he 18 moved off the HPL. 25 C.F.R. §§ 700.147 (a), 700.69(c); Begay v. Off. of Navajo & Hopi 19 Indian Relocation, 305 F. Supp. 3d 1040, 1044 (D. Ariz. 2018). The applicant bears the 20 burden of proving both the residency and head-of-household elements. 25 C.F.R. § 21 700.147(b). Only the residency element is at issue in this case, as the parties agree that 22 Plaintiff became a head of household in 1984. (Doc. 13 at 5; Doc. 17 at 11). 23 Under the applicable regulations, determining an applicant’s residence “requires an 24 examination of a person’s intent to reside combined with manifestations of that intent.” 49 25 Fed. Reg. 22,278 ; see also Charles v. Off. of Navajo & Hopi Indian Relocation, 774 Fed. 26 Appx. 389, 390 (9th Cir. 2019). Such manifestations of intent may include ownership of 27 livestock, ownership of improvements, grazing permits, livestock sales receipts, homesite 28 leases, public health records, medical records, school records, military records, 1 employment records, mailing address records, banking records, driver’s license records, 2 voting records, home ownership or rental off the Joint Use Area, census data, Social 3 Security records, marital records, court records, birth records, the Joint Use Area roster, 4 and any other relevant data. 49 Fed. Reg. 22 , 278. “An individual who was, on 5 December 22, 1974, away from the land partitioned to the Tribe of which he/she is not a 6 member may still be able to prove legal residency.” 49 Fed. Reg. 22,277 . 7 III. DISCUSSION 8 As noted above, only the residency element is at issue on this appeal because the 9 IHO found that Plaintiff met the head-of-household requirement in 1984 after Defendant 10 stipulated to such at the Hearing. That said, Plaintiff appears to argue that the IHO erred 11 with respect to his finding on the head-of-household requirement. In her Motion, Plaintiff 12 spends nearly three pages articulating the standard used for determining whether one is a 13 head of household. (Doc. 13 at 4–6). Plaintiff explains that an annual income of $1,300 14 creates a presumption of self-support and that college scholarships may be considered in 15 the analysis. (Id. at 4–5). Plaintiff then appears to assert that, despite Defendant’s 16 stipulation that she became a head of household in 1984, the IHO “changed his position” 17 on the issue without providing any reasoned analysis and that “[a]ny finding that [Plaintiff] 18 was not a head of household [in 1984] . . . is not supported by substantial evidence.” (Id. 19 at 6). Later, Plaintiff returns to the issue by citing to caselaw holding that “a decision by 20 the [IHO] to disregard the stipulation would be arbitrary and such a decision must be set 21 aside.” (Id. at 11). In the Response, Defendant reiterates that it does not dispute that 22 Plaintiff became a head of household in 1984 and notes that Plaintiff’s Motion “fails to 23 describe how the IHO ‘changed his position’ in the Decision.” (Doc. 17 at 11). Despite 24 this, Plaintiff again returns to the head-of-household issue in her Reply brief by setting 25 forth when one qualifies as “self-supporting” and asserting that “[i]t was the [IHO]’s duty 26 to articulate a rational basis for his finding that [Plaintiff] did not attain head of household 27 status in the summer of 1984.” (Doc. 21 at 4). 28 As Defendant points out in its briefing, Plaintiff’s extensive arguments with respect 1 to the head-of-household requirement are perplexing given that the IHO specifically stated, 2 “[e]ven though [Plaintiff] may be considered a self-supporting head of household at some 3 point in time in 1984, . . . she was not a legal resident of [the HPL].” (Doc. 8 at 282 4 (emphasis added)). There is no indication that the IHO rejected or otherwise disregarded 5 Defendant’s stipulation that Plaintiff achieved head-of-household status in 1984; the IHO’s 6 denial of benefits was based entirely on Plaintiff’s failure to meet the residency 7 requirement. Therefore, it is unclear why Plaintiff repeatedly raises the head-of-household 8 issue as a reason for this Court to reverse the IHO’s Decision (the “Decision”).3 If Plaintiff 9 were instead arguing that she obtained head-of-household status earlier than 1984 and that 10 the IHO erred in not finding so, the head-of-household issue might be relevant on this 11 appeal because the parties do not dispute—indeed, the IHO even recognized—that Plaintiff 12 was an HPL resident at some point prior to 1984. However, Plaintiff makes no such 13 argument. Therefore, the Court finds no reason to analyze or otherwise question the IHO’s 14 head-of-household determination and will move forward under the assumption that 15 Plaintiff achieved head-of-household status in 1984. 16 With respect to the residency requirement, the Court will first provide a summary 17 of the IHO’s conclusion that Plaintiff was not an HPL resident in 1984. The IHO noted that 18 Plaintiff was born on November 15, 1966 and that her family resided on the Red Lake 19 Chapter of the HPL at that time. (Doc. 8 at 280, 282). Plaintiff’s HPL residency was 20 maintained until at least December 22, 1974, as evidenced by her parents’ own eligibility 21 for relocation benefits and the fact that she was an 8-year-old dependent minor. (Id. at 282). 22 Indeed, the IHO specifically recognized that Plaintiff’s HPL residency “persevered during 23 most of her minority.” (Id. at 284). In the mid-1970’s, however, Plaintiff’s parents 24 established a residence off HPL land, in Tuba City, Arizona. (Id. at 280). The IHO found [25] 26 3 The Court acknowledges the possibility that Plaintiff made the head-of-household arguments because the ONHIR originally denied benefits because Plaintiff was not a head 27 of household. (See Doc. 8 at 39). That said, given the parties’ stipulation on the issue—and that the IHO accepted that stipulation—the Court need not address the head-of-household 28 element on this appeal. 1 that the Tuba City residence became Plaintiff’s “primary physical residence” beginning 2 around 1975 or 1976, i.e., when she was “at least 9 or 10 years old.” (Id. at 282; 284). 3 Plaintiff’s attended Tuba City schools and commuted daily from the Tuba City residence. 4 (Id. at 283). The IHO found that Plaintiff’s activities were centered there as well, pointing 5 to her participation in successive Summer Youth Programs and her work as a cashier during 6 her senior year of high school. (Id.). Despite the Tuba City residence, however, the IHO 7 acknowledged that there was “no question” that Plaintiff’s parents “retained substantial 8 and recurring contacts” with the Red Lake residence “for some period of time during 9 [Plaintiff]’s minority.” (Id. at 283). Specifically, Plaintiff’s father maintained ministerial 10 duties on the HPL. (Id. at 280). Additionally, Plaintiff’s grandparents still lived at the Red 11 Lake residence, and her parents regularly returned to care for them. The IHO recognized 12 that Plaintiff also visited the Red Lake residence during this time, helping with “chores, 13 livestock and planting.” (Id.). 14 The IHO found that, at some point, Plaintiff’s “many and significant connections” 15 with Tuba City outweighed her visits to and contacts with the Red Lake residence, which 16 had been “waning.” (Id. at 284). However, the IHO failed to identify an exact date upon 17 which Plaintiff’s HPL residency was extinguished. In one part of the Decision, the IHO 18 stated that Plaintiff’s “claim to legal residence in Red Lake was eliminated earlier than 19 [the fall of 1984].” (Id. at 285 (emphasis added)). Yet in another part, the IHO stated that 20 Plaintiff’s claim to residence in Red Lake “was voluntarily and exuberantly extinguished 21 when she turned 18 [on November 15, 1984]” and enrolled in the Tuba City Chapter of the 22 Navajo Nation. (Id. at 284 (emphasis added)). The exact timing is important because, as 23 noted above, it is undisputed that Plaintiff became a head of household at some point in the 24 late summer or early fall of 1984. If there were any overlap between her Red Lake 25 residency and her head of household status, Plaintiff would have met both requirements 26 and would presumably be entitled to benefits. 27 It is likely impossible to identify an “exact date” upon which Plaintiff’s contacts 28 with the Red Lake residence were outweighed to the point of extinguishing her HPL 1 residency. It is without question, however, that the frequency of Plaintiff’s visits to the Red 2 Lake residence is a critical consideration in the residency analysis in this case. At the 3 Hearing, Plaintiff testified that the Red Lake residence “was always like our second home,” 4 (Id. at 185), and that she and her parents would visit the Red Lake residence “[a]t least once 5 a week, once or twice a week” throughout her childhood (Id. at 187). She further testified 6 that, in the summer of 1984, she and her mother—who by that point was the sole caretaker 7 of her paternal grandmother—would go to the Red Lake residence “[a]t least three times a 8 week.” (Id. at 189). Plaintiff’s mother testified that she and her family would visit the Red 9 Lake residence “[e]very week, every, almost every week” for two or three days at a time. 10 (Id. at 201, 203). In the Decision, the IHO found that Plaintiff and her mother’s testimony 11 about the frequency of Plaintiff’s visits to the Red Lake residence was “exaggerated and 12 not credible.” (Id. at 281). These credibility determinations were particularly important 13 given the IHO’s conclusion that Plaintiff’s visits to and contacts with the Red Lake 14 residence dissipated to the point that her HPL residency was extinguished by the time she 15 became a head of household in 1984. 16 On this appeal, Plaintiff argues that she was an HPL resident until her family moved 17 off the HPL in April 1985. (Doc. 13 at 6). Plaintiff argues that the IHO’s Decision was 18 arbitrary, capricious, and unsupported by substantial evidence because (1) the IHO 19 deviated from agency policy and erroneously found that Plaintiff was not an HPL resident 20 until April 1985 (Doc. 13 at 6–12; Doc. 21 at 5–12); (2) the IHO’s credibility 21 determinations with respect to the testimony of Plaintiff and her mother were not supported 22 by substantial evidence (Doc. 13 at 12–14; Doc. 21 at 13–15); and (3) the IHO’s denial of 23 benefits was inconsistent with the ONHIR’s federal trust responsibilities (Doc. 13 at 14– 24 16). The Court need only address the second argument. See Bitah v. Off. of Navajo & Hopi 25 Indian Relocation, No. CV-20-08323-PCT-JZB, 2022 WL 1751836 , at *6, *10 (D. Ariz. 26 Mar. 30 , 2022) (“Because the Court will remand this action, it makes no conclusions as to 27 the remaining arguments.”). 28 In a section of the Decision titled “Credibility Findings,” the IHO states the 1 following with respect to Plaintiff and her mother, Mary Mexicano: 2 1. [Plaintiff]: [Plaintiff] testified about the residence at Red Lake and the residence in Tuba City and she testified about her 3 return visits to her grandmother’s home in Red Lake. [Plaintiff] also testified about her education and employment. [Plaintiff] 4 is a credible witness except about the frequency of her visitation to her grandparents’ residence in Red Lake which the 5 undersigned finds to be exaggerated and not credible. 6 2. Mary Mexicano: [Plaintiff]’s mother testified about [Plaintiff] living with her through her high school graduation [7] and she testified about the family’s return visits to Red Lake. Mary Mexicano is a credible witness except about the [8] frequency of [Plaintiff]’s visitation to her grandparents’ 9 residence in Red Lake which the undersigned finds to be exaggerated and not credible. [10] (Doc. 8 at 281). Plaintiff cites to caselaw indicating that such negative credibility [11] evaluations—i.e., that their testimony concerning the frequency of Plaintiff’s visits to the [12] Red Lake residence was “exaggerated and not credible”—require the support of “specific, [13] cogent reasons” constituting substantial evidence. (Doc. 13 at 12–13). Plaintiff argues that [14] the IHO in this case failed to provide such supportive reasoning. The Court agrees. [15] “When the decision of an [IHO] rests on a negative credibility evaluation, the [IHO] [16] must make findings on the record and must support those findings by pointing to substantial [17] evidence on the record.” Ceguerra v. Sec’y of Health & Hum. Servs., 933 F.2d 735 , 738 [18] (9th Cir. 1991) (citation omitted); see also Hossain v. Immigr. & Naturalization Serv., 7 19 Fed. Appx. 760, 760 (9th Cir. 2001) (“We review credibility determinations for substantial [20] evidence and defer to credibility findings that are fairly supported by the record and [21] supported by specific and cogent reasons for the rejection of the testimony.”). The Ninth [22] Circuit has further explained that “if an [IHO] has grounds for disbelieving material [23] testimony, it is both reasonable and desirable to require the ALJ to articulate those grounds [24] in the original decision.” Ceguerra, 933 F.2d at 740 (citing Varney v. Sec’y of Health & [25] Hum. Servs., 859 F.2d 1396 (9th Cir. 1988)). Here, the IHO failed to articulate reasons [26] supporting his conclusion that Plaintiff and her mother’s testimony concerning “the [27] frequency of [Plaintiff]’s visitation to her grandparents’ residence in Red Lake . . . [is] [28] 1 exaggerated and not credible,” while simultaneously finding the rest of Plaintiff and her 2 mother’s testimony to be credible. Moreover—and as discussed above—such testimony 3 was undoubtedly “material,” as it was the “waning” frequency of Plaintiff’s visits to and 4 contacts with the Red Lake residence that perhaps most significantly supported the IHO’s 5 conclusion that Plaintiff’s claim to legal residence on the HPL “was eliminated earlier than 6 [1984].” (Doc. 8 at 284, 285). 7 This Court does not overlook that an IHO’s credibility findings are typically 8 “granted substantial deference by reviewing courts.” De Valle v. Immigr. & Naturalization 9 Serv., 901 F.2d 787, 792 (9th Cir. 1990) (citations omitted). This is because it is the IHO 10 who is “in a position to observe [a witness]’s tone and demeanor, to explore inconsistences 11 in testimony, and to apply workable and consistent standards in the evaluation of 12 testimonial evidence.” Sarvia-Quintanilla v. U.S. Immigr. & Naturalization Serv., 767 F.2d 13 1387, 1395 (9th Cir. 1985). As the Ninth Circuit has put it, the IHO is thus “uniquely 14 qualified to decide whether a [witness]’s testimony has about it the ring of truth.” Id. That 15 said, the fact remains that “an adverse credibility finding must be supported by specific, 16 cogent reasons, and cannot be based on speculation and conjecture.” Shire v. Ashcroft, 388 17 F.3d 1288, 1295 (9th Cir. 2004). Here, the IHO’s one-sentence credibility determinations, 18 as provided above, merely state that the IHO found the testimony to be “exaggerated and 19 not credible” without any other explanation or support. 20 Defendant argues that the IHO’s supportive reasoning in this case is found in the 21 body of the Decision, rather than formally stated in the “Credibility Findings” section. 22 (Doc. 17 at 16). Indeed, this Court has recognized that “[t]he IHO may set forward 23 [credibility reasoning] either in the formal credibility determination or in the body of the 24 decision.” Begay v. Off. of Navajo & Hopi Indian Relocation, 2021 WL 4247919 , No. CV25 20-08102-PCT-SMB, at *4 (D. Ariz. Sept. 17, 2021) (citation omitted). Specifically, 26 Defendant points to three instances in the body of the Decision where it asserts that the 27 IHO provided “specific, cogent reasons for his negative credibility determinations.” (Doc. 28 17 at 16). First, Defendant points to the IHO’s conclusion that Plaintiff’s visits to the HPL 1 “paled by comparison” to her “many and significant connections to Tuba City.” (Doc. 8 at 2 284). This statement would only support the IHO’s credibility determinations if it 3 explained why or how Plaintiff’s visits to the HPL “paled by comparison” to her Tuba City 4 connections. In other words, the IHO should have pointed to specific evidence in the record 5 indicating that Plaintiff’s visits to the HPL were fewer and less frequent than what she 6 testified to, which would have supported his negative credibility determinations by 7 showing that Plaintiff’s testimony was inconsistent with the record. As it stands, however, 8 the IHO’s own conclusion that Plaintiff’s visits “paled by comparison” is, at best, a 9 conclusory assertion that is insufficient to prove that Plaintiff and her mother were 10 exaggerating. At worst, it is nothing more than circular reasoning: the IHO does not prove 11 that Plaintiff and her mother were exaggerating Plaintiff’s visitation frequency by 12 asserting, without any evidence, that Plaintiff did not visit frequently. The logical fallacy 13 can also be seen by considering that the frequency of Plaintiff’s visits to the HPL and her 14 connections to Tuba City could be mutually exclusive: Plaintiff may very well have visited 15 the HPL just as often as she and her mother testified and, at the same time, Plaintiff may 16 have still had significantly more connections to Tuba City. In sum, the Court does not find 17 that the IHO’s conclusion that Plaintiff’s visits to the HPL “paled by comparison” to her 18 Tuba City connections provides any support for why Plaintiff and her mother’s testimony 19 was “exaggerated and not credible.” 20 Second, Defendant points to the IHO’s conclusion that Plaintiff’s “father had a heart 21 condition that prevented him from caring for his parents” and that “overall [the family’s] 22 contacts with Red Lake were waning.” (Id.). Again, such conclusions do not prove or even 23 necessarily support that Plaintiff and her mother were exaggerating about Plaintiff’s 24 visitation frequency. Plaintiff’s father’s heart condition may have prevented him from 25 caring for and visiting his parents, but it says nothing about whether Plaintiff was visiting 26 the HPL any less than she testified to. Indeed, Plaintiff specifically testified that she and 27 her mother visited the Red Lake residence “[a]t least three times a week” in the summer of 28 1984 when her mother became the sole caretaker for Plaintiff’s grandmother in light of 1 Plaintiff’s father’s heart condition. (Id. at 189). Meanwhile, the IHO’s conclusion that the 2 family’s “contacts with Red Lake were waning”—without any supporting evidence—is 3 merely another conclusory assertion and circular argument. The IHO cannot support his 4 finding that Plaintiff and her mother were exaggerating Plaintiff’s visitation frequency by 5 pointing to his own finding that the family’s contacts—that is, their visitation frequency— 6 was “waning.” The Court again finds no support for the IHO’s credibility determinations. 7 Third, Defendant points to the IHO’s statement that Plaintiff’s parents “may have 8 had an imperative to go to Red Lake up to 1984,” but that Plaintiff “did not.” (Id. at 285). 9 Again, such a statement is little more than a conclusory assertion. The IHO fails to explain 10 why or how he was able to conclude that Plaintiff lacked any “imperative” to go to Red 11 Lake. To the contrary, the IHO himself recognized that, throughout her childhood, Plaintiff 12 often visited the Red Lake residence to help with “chores, livestock and planting.” (Id. at 13 280). The IHO fails to explain why those tasks did not amount to an “imperative” for 14 Plaintiff’s visits in 1984 or otherwise show that the need for Plaintiff to help with such 15 tasks had by that point come to an end. The Court will not accept the IHO’s entirely 16 unsupported assertion that Plaintiff had no reason to visit the Red Lake residence as 17 sufficient support for his finding that Plaintiff and her mother exaggerated Plaintiff’s visits. 18 In sum, Defendant fails to point out any instance in which the IHO supported his 19 negative credibility determinations with “specific, cogent reasons” from the record. See 20 Shire, 388 F.3d at 1295. This Court’s own review of the Decision failed to turn up any such 21 instances either. The IHO could have supported his adverse credibility determinations by 22 pointing to specific inconsistences between Plaintiff’s testimony, her mother’s testimony, 23 and the record in this matter. See De Valle, 901 F.2d at 792 (pointing to specific 24 inconsistency in the plaintiff’s testimony as support for negative credibility determination); 25 Todicheeney v. Off. of Navajo & Hopi Relocation, No. CV-21-08003-PCT-MTL, 2022 WL 26 1555394, at *6 (D. Ariz. May 17, 2022) (holding substantial evidence supported negative 27 credibility determination where there were “stunning differen[ces]” between testimonies 28 of two witnesses and that one witness’s testimony “ranged far and wide and was thoroughly 1 inconsistent”). As just one example, the IHO could have noted the conflict between 2 Plaintiff’s assertion that she visited the Red Lake residence three times per week during 3 the summer of 1984 and her testimony that she was working full-time, five days per week 4 that same summer.4 (Doc. 8 at 189–90). The IHO failed to provide any such support, and 5 this Court cannot substitute its own reasoning on appeal. See Ceguerra, 933 F.2d at 738 6 (citation omitted) (“A reviewing court can evaluate an agency's decision only on the 7 grounds articulated by the agency.”). 8 In sum, the Court finds that the IHO failed to provide substantial evidence to support 9 his negative credibility determinations as to Plaintiff and her mother’s testimony 10 concerning the frequency of Plaintiff’s visits to the Red Lake residence. Such testimony 11 was material, as the frequency of Plaintiff’s visits was a central factor in determining when 12 her HPL residency was extinguished. Given the IHO’s failure to satisfy the substantial 13 evidence standard with respect to this material issue, the Court cannot uphold the IHO’s 14 Decision. Whether benefits should ultimately be awarded, however, remains with the IHO. 15 Open questions remain as to the credibility of Plaintiff and her mother’s testimony, as well 16 as to whether Plaintiff satisfied the residency requirement at the time she became a head of 17 household in the late summer or early fall of 1984. The Court will remand for a decision 18 consistent with this Order. 19 Accordingly, 20 IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 13) is 21 granted. The matter is remanded for further proceedings consistent with this Order. 22 IT IS FURTHER ORDERED that Defendant’s Cross-Motion for Summary 23 Judgment (Doc. 17) is denied. 24 /// 25 /// [26] 27 4 The Court here is merely providing one example of how the IHO could have supported his negative credibility determination. The Court is not finding that this example 28 would have been valid, let alone sufficient, support. 1 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in favor of Plaintiff and terminate this action. 3 Dated this 29th day of August, 2022. [4] 6 United States District kadge